TB5-08187

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08187 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 23, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart Kaminker Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Libya, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal, and he does not seek an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either substitute its own positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant came to Canada on a student visa and later made a claim for refugee protection. He alleges that he was detained, beaten, and threatened in Libya because of his involvement in a demonstration against the Muslim Brothers militia. Upon return to Libya, he fears that he will be harmed by the Muslim Brothers, who continue to seek him. [4] The Appellant's application for refugee protection was heard on July 13, 2015. By a decision of July 24, 2015, the RPD rejected the claim. Citing a number of inconsistencies and implausibilities in the Appellant's evidence, the panel found that the Appellant had not established the key elements of his claim with credible evidence. [5] The Appellant submits that the RPD erred in its assessment of his credibility. He also asks the RAD to accept new evidence which, in his submission, rectifies any deficiencies in his refugee claim. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.2 Application of Section 110(4) [8] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [9] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.4 [10] As the RAD understands it, Section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [11] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.5 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [12] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness", these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in Section 110(4).6 [13] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.7 While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly identical wording of Section 113(a). The Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.8 The RAD presumes that Parliament, in creating Section 110(4), was well aware that this provision is almost identical in wording to Section 113(a)-which provides a strong indication that Parliament intended the test from Raza to be used by the RAD.9 [14] In Iyamuremye,10 the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under the IRPA. Subsequently, in Ghannadi,11 the Court held that the RAD should consider the factors in Raza, but it noted that these are merely considerations to be taken into account and not necessarily determinative of admissibility. In Singh,12 the Court found that the factors in Raza are based specifically on the language of Section 113(a) and are not transferable in the context of an appeal before the RAD. The Court found that it was unreasonable for the RAD to strictly apply the Raza factors without distinguishing its own role from that of a Pre-Removal Risk Assessment (PRRA) officer who is bound by Section 113(a).13 [15] In Singh, the Court wrote that: ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.14 [16] The Court also held that the "main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally according to the French version) have been expected in the circumstances to have presented'".15 [17] The Court did not discuss Iyamuremye or Ghannadi in its analysis of Sections 110(4) and 113(a). It did, however, certify the following question: In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? [18] The question of whether the Raza factors are applicable to evidence that passes the test in Section 110(4) is still unsettled.16 It has been found that the application of the Raza criteria by the RAD is reasonable;17 it has also been held that the application of those factors without modification is an error.18 The Raza factors have also been described by the Court as "useful guidance".19 [19] While trusting that the matter will eventually be resolved by the Federal Court of Appeal, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. Although it may be inappropriate to strictly apply the factors in Raza, given that they are not specific to Section 110(4) and were not crafted for use in an appellate process, the RAD's consideration of new evidence cannot end with the application of the test in Section 110(4). To limit its analysis to that provision would be to ignore other provisions of the IRPA-such as Sections 162(2) and 171(a.3). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [20] In Denbel, the Federal Court held that: When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.20 [21] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of Section 110(4), but also to consider whether it has evidentiary value and, if so, how much. While the factors in Raza are indeed helpful guidance, the RAD would undertake a very similar analysis even if it would completely disregard that decision.21 [22] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances". This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [23] While the IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.22 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit". [24] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [25] The RAD will also consider whether the proposed new evidence is material. In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [26] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,23 and the officer has no power to reconsider or set aside the RPD's decision. A PRRA will in most cases take place a year or more after the RPD's decision.24 In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [27] However, as the Court noted in Singh, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The RAD appeal is meant to be decided within four or five months of the RPD's decision. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. It is of paramount importance that the RAD may look only to admissible new evidence when considering whether to hold a hearing under Section 110(6).25 [28] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD were to apply the materiality factor as defined in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. Further, the RAD is not asking-as the PRRA officer is under Raza-whether the RPD's decision would have been different. The RAD is making its own assessment of whether the determination should have been different or whether the RPD's decision was in error. [29] For example, it is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations, the RPD is not required to go further to consider the evidence of persecution.26 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly obtained identity documents could be rejected by the RAD as lacking materiality, even though they could be the basis for a successful appeal. [30] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. While the PRRA officer is required to focus on a single issue-risk to the applicant-the RAD is required to consider both whether the RPD's decision is in error and, after having reviewed all of the evidence, whether the Appellant is a protected person. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [31] For these reasons, the RAD will apply the following factors to evidence that passes the test in Section 110(4). (a) The RAD will consider whether the proposed new evidence is credible or trustworthy. (b) The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.27 (c) The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [32] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [33] The Appellant asks the RAD to admit the following documents: (a) Articles and Certificate of Incorporation, dated XXXX 2011, for the Alamal Charitable Association for Orphans;28 (b) A "Warrant of Arrest," dated XXXX XXXX, 2015, from the Rakina Martyrs Brigade;29 and (c) A "Summons and Arrest" document, also dated XXXX XXXX, 2015, also from the Rakina Martyrs Brigade.30 [34] The Appellant concedes that the document in (a) does not meet the test in Section 110(4), as it arose before the rejection of his refugee claim. However, he argues that it is "new" in the sense that it is capable of contradicting a negative finding of the RPD. He claims that he was in possession of this document at the time of his refugee hearing, but he was advised by his counsel before the RPD that the document was not necessary and therefore did not produce it. He asks the RAD to avoid a restrictive application of Section 110(4) and admit this document, as "it would be an absurd result for the claimant to lose the opportunity to have his claim decided on the merits simply because his counsel made a decision about what documents would or would not assist in his claim for refugee protection".31 [35] The RAD notes that the instructions to the Basis of Claim (BoC) form direct a refugee claimant to provide to the RPD "any documents that may support your claim"32 and to attach "two copies of any documents you have to support your claim...."33 Here, the Appellant was in possession of documents purporting to show the existence of a charitable organization in which he claims to have been active, and yet he did not provide these to the RPD, even after he was questioned about that organization. [36] The document in (a) did not arise after the rejection of the Appellant's refugee claim, was reasonably available to him before the RPD, and he could reasonably have been expected in the circumstances to have presented it to that tribunal. It appears that the Appellant and his counsel believed his claim would succeed without presenting this evidence; having chosen that legal tactic, the Appellant must live with the consequences, barring a serious charge of professional incompetence backed by sufficient corroborating evidence.34 [37] The document in (a) does not meet the requirements of Section 110(4). While the Appellant asks the RAD to be flexible and nevertheless admit the document, the language of Section 110(4) is clear: the Appellant may present only evidence that meets the statutory requirements. Section 110(4) offers the RAD no discretion; if the proposed new evidence does not meet the test of that section, the RAD must reject that evidence.35 [38] The documents in (b) and (c) are dated in August of 2015, after the rejection of the Appellant's refugee claim. They meet the test in Section 110(4); however, as discussed above, the RAD will nevertheless consider whether they are credible, relevant, and material. [39] The RAD declines to admit these documents, as they are not credible or trustworthy. In reaching this conclusion, the RAD has considered the Appellant's credibility. For reasons set out below, the RAD finds that the Appellant lacks credibility. The Appellant claimed to flee persecution in Libya, but did not promptly seek refugee protection in Canada; instead, he initiated a claim only when he learned that he could not continue his studies, and he alleged that new events had occurred to cause him to fear persecution. The RPD found the timing suspicious: it was too coincidental that a warrant for his arrest was issued at the very time he was about to lose his student status. Here, the RAD notes that the Appellant received the RPD's negative decision on July 30, 2015; the "new" arrest warrants are dated only four days later, again a remarkable coincidence. [40] The Appellant submitted an arrest warrant to the RPD that was suspicious and deserving of no weight; he has now submitted further arrest warrants and asks the RAD to admit them and assign them probative value. Despite the requirements of RAD Rule 3(3)(g) to make "full and detailed submissions" with respect to proposed new evidence, he has not explained to the RAD whom these warrants were served upon, or how he came to know of them, or how they came to Canada. In short, after the Appellant's refugee claim was rejected, in part because of his submission of a questionable warrant document, he immediately submitted "new" warrants, without any explanation of how they arose or where they came from. The RAD finds that, when considered in the context of the Appellant's own lack of credibility and his previous submission of a suspicious warrant, these documents are not credible or trustworthy and will not be admitted as new evidence. [41] For these reasons, none of the Appellant's proposed new evidence is admissible in this appeal. What is the Role of the RAD? [42] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [43] The Appellant makes no specific submissions about the standard of intervention to be applied here. [44] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.36 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [45] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [46] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [47] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.37 [48] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [49] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [50] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [51] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [52] The Appellant argues that the RPD made various errors in rejecting his refugee claim. [53] Arrest warrant: The Appellant submitted an arrest warrant, allegedly issued by the Military Council of the Shula Fighting Brigade, to the RPD.38 The RPD noted that the document contains a stamp of the Libyan National Army-which, according to objective evidence, is a group fighting against the Islamic militias. The RPD found it implausible that an arrest warrant issued by an Islamic militia would contain the stamp of an enemy militia, and it found that the document was not genuine. [54] The Appellant argues on appeal that the RPD's finding was unreasonable, as both Libya's eastern and western regions have an organization calling itself the Libyan National Army. To sum up the Appellant's argument here: the arrest warrant bears the stamp of a different Libyan National Army, one that is associated with the Islamic militias, not the one that is battling the Islamic militias. [55] The RAD cannot accept this argument. The Appellant has not pointed to any objective evidence which corroborates his claim that there are two Libyan National Armies, each on a different side of the conflict. The RAD owes no deference to the RPD's finding of implausibility here; having reviewed the document in question, however, the RAD reaches the same conclusion as did the RPD. The Appellant claims that an Islamic militia has issued a warrant for his arrest; that warrant contains the stamp of an organization which, according to objective evidence, is the enemy of Islamic militias.39 While implausibility findings should be made only in the clearest of cases, the RAD finds that this is such a case: it is certainly not plausible that a militia would use the stamp of an enemy organization on its own documents. [56] Identity card: The RPD considered an identity card submitted by the Appellant, purportedly issued by the Alamal Charitable Society for Orphan's Care. The Appellant told the RPD that the card was issued in 2011; the RPD noted that the card contains the passport number of the passport issued to the Appellant in 2012. The RPD, of the understanding that each renewed passport contains a different number, asked how the identity card could bear the number of a passport issued subsequent to the card. The Appellant explained that the number does not change on Libyan passports, though he provided no objective evidence to corroborate this. The RPD also noted that the internet address on the card did not appear to exist. The panel found that the Appellant was not a member of the charitable organization and questioned whether it even exists. [57] The Appellant argues on appeal that he: ... mistook the membership card that was submitted as his original card as the replacement card. While the appellant obtained a membership card originally when he first joined in 2011, many changes were made to the card that required new cards to be issued to members.40 [58] In other words, the card was issued after the passport, and thus it could include the new passport's number. The Appellant appears to have abandoned his previous explanation that Libyan passport numbers do not change. [59] Here, the Appellant attempts to advance an entirely new explanation for the discrepancy in his evidence. He does not do so via an affidavit, but he simply includes this evidence in his memorandum.41 He provides no corroborating evidence, such as a document from the organization itself, other proof of the organization's existence, or his previous card. Even if the RAD would accept the Appellant's evidence, given without affidavit in his Memorandum, that evidence would not resolve his credibility problem here. The Appellant has not explained how he "mistook" one card for the other, or why he did not recall the issuance of a new card even when confronted by the RPD with the passport number contained on the card. The RAD has reviewed the card itself, and there is no indication that it is a replacement card, nor does it contain a date of issue.42 The RPD did not err in giving no weight to the card and in making a negative credibility finding with respect to this issue; having reviewed the evidence, the RAD reaches the same conclusion. [60] Travel outside Libya: The RPD questioned the Appellant about passport stamps that appear to show travel to Tunisia. The Appellant testified that he did not enter Tunisia, but he travelled to the border in order to buy milk for orphans. The RPD made several negative credibility findings. It found that the Appellant gave inconsistent evidence; he claimed he last traveled to Tunisia in XXXX of 2014, but his passport has stamps showing a visit in XXXX of 2014. The dates on those stamps also conflicted with one day on which the Appellant claimed to be in Libya, participating in a demonstration. Finally, the RPD also disbelieved the Appellant's evidence about buying milk because it had already concluded he was not involved in an organization caring for orphans. [61] The Appellant argues on appeal that the RPD erred in its questioning by inadvertently using the year 2013 instead of 2014, causing him to be confused. He also argues that his trips were "primarily to obtain milk for the orphans and would not require [him] to travel far from the border". These trips were frequent and routine and therefore not memorable, and his testimony that he last went to Tunisia in XXXX was nothing more than an honest mistake. [62] The RAD has already concluded, as did the RPD, that the Appellant did not establish with credible evidence that he worked for the orphan organization. Further, the Appellant did provide contradictory evidence about when he last travelled to Tunisia. While the RPD did confuse the dates during its questioning, the RAD cannot see how this ultimately affected the Appellant's evidence on this subject. Further, the Appellant does not challenge the RPD's finding that he was outside Libya on a date when he claimed to be demonstrating inside Libya. [63] The RPD did not err in its negative credibility findings with respect to the Appellant's trips to Tunisia. [64] Brother's affidavits: The Appellant provided corroborating evidence in the form of affidavits from his brother. The RPD found that it: ... cannot put sufficient weight on these affidavits to corroborate the claimant's allegations, taking into consideration its previous findings regarding the arrest warrant, and the identity cards, as well as the fact that the author of the affidavits is the claimant's brother and not a disinterested party.43 [65] The Appellant argues on appeal that it was unreasonable for the RPD to give these documents little weight, as the affidavits corroborate specific events that only the Appellant's family members would know about. [66] The RPD has been cautioned time and again, by both the Federal Court and the RAD, that an affiant's interest in a refugee claimant's well-being does not invalidate the affidavit. As discussed above, the Appellant was expected to provide documents in support of his claim.44 It follows logically that such documents will be, by their very nature, self-serving-the claimant is providing them for the purpose of proving that he is a Convention refugee or a person in need of protection. The RAD cannot understand the RPD's logic here-how does the author's interest in the outcome of the refugee claim diminish the value of his evidence? Can a corroborating letter only have probative value if its author does not care about the outcome of the refugee claimant's application? This type of reasoning, if permitted, would almost always defeat a claimant's evidence.45 [67] Despite this error, the RPD was not wrong to give little weight to the brother's affidavit. The RPD had numerous credibility concerns with the Appellant's own evidence and had also found that he provided fraudulent documents. The RPD was able to see and question the Appellant, and it found him and his documents to be lacking in credibility. In this context, it was not an error to give little weight to a corroborating affidavit from someone the RPD could not see or examine. [68] Finally, the RAD notes that the Appellant does not challenge a key finding of the RPD-that his delay in claiming seriously damages his credibility. The Appellant alleged that he fled persecution in Libya, where he had been detained, beaten, and threatened; despite this, he did not seek protection in Canada for more than a year, and he only did so after he lost further funding for his studies. [69] Having considered the RPD's decision, the evidence, and the Appellant's submissions, the RAD finds that the RPD did not err to reject the Appellant's refugee claim on the basis of credibility. Even if the RAD would show no deference to the RPD's findings, it would reach the same conclusion-the Appellant has not established his claim with credible or trustworthy evidence. CONCLUSION [70] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld October 23, 2015 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 4 Deri v. M.C.I., (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R., para. 16. 6 See Cyril, Edward v. M.C.I. (F.C., no. IMM-3081-14), Brown, September 22, 2015, 2015 FC 1106, para. 13. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R. 8 Ibid., Raza, paras. 13-15. 9 The presumption of consistent expression holds that "it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings". Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 214-215. 10 Iyamuremye, Oscar v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014, 2014 FC 494, para. 45. 11 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 12 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022, para 56. 13 See also Khachatourian, Robert v. M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 14 Singh, para. 55. 15 Singh, para. 58. 16 Deri, para. 56. 17 For example, Oluwole, John v. M.C.I. (F.C., no. IMM-6525-14), Southcott, August 14, 2015, 2015 FC 953, paras. 10 and 39; Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-6839-14), Strickland, August 13, 2015, 2015 FC 967, para. 59; Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, paras. 40-44. 18 For example, Shukurov, Sharof v. M.C.I. (F.C., no. IMM-6058-14), Fothergill, August 6, 2015, 2015 FC 949, para. 26; Ajaj, Firas Salem Munef v. M.C.I. (F.C., no. IMM-5604-14), Gascon, July 28, 2015, 2015 FC 928, paras. 61-63; Ching, Wai Kheong v. M.C.I. (F.C., no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, para. 56; and Khachatourian, Robert v. M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 19 Niyas, Mohamed Zayan v. M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 20 Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, para. 43. 21 Cyril, Edward v. M.C.I. (F.C., no. IMM-3081-14), Brown, September 22, 2015, 2015 FC 1106, para. 13. 22 There is a great deal of support for this view. "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004), at 17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 23 Cupid, Keturah Laverne v. M.C.I. (F.C., no., IMM-1737-06), Snider, February 16, 2007, 2007 FC 176, paras. 4, 25, and 26. 24 IRPA, s. 112(b.1). 25 Singh, para. 53. 26 Liu, Yanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 27 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 28 Exhibit P-2, Appellant's Record, p. 99. 29 Exhibit P-2, Appellant's Record, p. 104. 30 Exhibit P-2, Appellant's Record, p. 106. 31 Exhibit P-2, Appellant's Record, p. 157, Memorandum, para. 40. 32 Exhibit P-2, Appellant's Record, p. 15, Basis of Claim (BoC) Form, p. 1 of 10. 33 Ibid., BoC Form, p. 2 of 10. 34 Gharghi, Kayvan v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-1373-09), Kelen, October 7, 2009, 2009 FC 1014, para. 34. 35 Deri v. M.C.I., (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 60. 36 X (Re), 2015 CanLII 19235 (CA IRB). 37 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022, para. 55. 38 Exhibit RPD-1, RPD's Record, p. 573. 39 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Libya (20 January 2015), Item 4.7, Response to Information Request (RIR) LBY105034.E, 16 January 2015. 40 Exhibit P-2, Appellant's Record, p. 149, Memorandum, para. 22. 41 The RAD notes that, if this explanation was presented to the RAD as new evidence in this appeal, it would not meet the test in Section 110(4), as the evidence did not arise after the rejection of the claim, was reasonably available to the Appellant, and could reasonably have been expected at the RPD, particularly when the Appellant was confronted with this very issue. 42 Exhibit RPD-1, RPD's Record, p. 561. 43 Exhibit RPD-1, RPD's Reasons, para. 15. 44 Instructions to the Basis of Claim Form; also RPD Rule 11. 45 Coitinho, Jorge Alberto Rodriguez v. M.C.I. (F.C., no. IMM-5710-02), Snider, July 26, 2004, 2004 FC 1037. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08187